Disputed Maritime Areas: The Rights and Obligations of States under International Law

Abstract

Currently, there are approximately 200 ‘disputed maritime areas’. Disputed maritime areas inevitably emerged due to the expansion of the limits of coastal State jurisdiction; e.g. in East China Sea, the South China Sea, the Mediterranean Sea, and the Aegean Sea.Unilateral acts that are undertaken in disputed maritime areas frequently lead to conflict between States.Conflicts can arise, for instance, if a claimant State authorises certain acts that are under coastal State jurisdiction, such as fishing, seismic work, marine scientific research, to be undertaken in a disputed area. However, the type and severity of dispute that is created varies with the specific context and the type of conduct concerned. The issue of what the rights and obligations of States are within disputed maritime areas is at the heart of this study. If the States concerned enter into cooperative arrangements, conflict is less likely to emerge between them, although this is not always the case. Usually, paragraph 3 of Articles 74 and 83 of the United Nations Convention on the Law of the Sea (LOSC) will become relevant when States’ coasts lie opposite or adjacent to each other, and when they have been unsuccessful in delimiting their overlapping claims over the same continental shelf/exclusive economic zone (EEZ) area. This paragraph contains two obligations that are tailored toward different aims. The obligation to “make every effort to enter into provisional arrangements of a practical nature” is tailored towards that States are under a duty to make good faith attempts to come to a provisional arrangement, constituting an obligation of conduct. There are two aspects to the obligation not to hamper or jeopardise: it is concerned with both the actions and reactions of claimant States concerning disputed continental shelf/EEZ areas. In the case law, three cases (i.e., Aegean Sea Continental Shelf (interim measures), Guyana v. Suriname, and Ghana/Côte d’Ivoire) have contributed to a better understanding of what States’ rights and obligations are in disputed maritime areas. The ruling of a Tribunal in Guyana v. Suriname, relying rather heavily on the interim measures order of the International Court of Justice in Aegean Sea Continental Shelf (interim measures), elaborated on as to what acts can be undertaken unilaterally by a State in relation to a disputed maritime area. The actual placing of an installation on or above the seabed; exploiting the natural resources of the continental shelf; and causing physical damage to the seabed, including drilling in a disputed continental shelf area were all considered unlawful. Yet, the two obligations included in paragraph 3 of Article 83 LOSC were interpreted as to mean that a moratorium on economic activities in a disputed maritime area should be avoided. One implication of this was that conducting seismic work unilaterally was considered to be allowed within a disputed area. However, what limits international law imposes on the scope for States to exercise jurisdiction in relation to a disputed maritime areas, or to what extent restraint must be exercised, varies with the specific circumstances of the case.